Seay v. Chase et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
LUTHER D. SEAY, JR.,
Plaintiff,
5:25-CV-1593
v. 	(MAD/DJS)
SHAUN M. CHASE, et al.,
Defendants.
APPEARANCES:
LUTHER D. SEAY, JR.
Plaintiff, Pro Se
93001306
Onondaga County Justice Center
555 South State Street
Syracuse, New York 13202
DANIEL J. STEWART
United States Magistrate Judge
REPORT-RECOMMENDATION and ORDER
The Clerk has forwarded for review a civil complaint filed by Plaintiff. The filing
fee in this action has not been paid, but Plaintiff has filed a motion to proceed in forma
pauperis. 	Dkt. No. 2. 	The matter has been referred to the undersigned for an initial
review pursuant to L.R. 72.3.
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I. SUFFICIENCY OF THE COMPLAINT
A. Governing Legal Standard
28 U.S.C. § 1915(e) directs that, when a plaintiff seeks to proceed in forma
pauperis, “(2) . . . the court shall dismiss the case at any time if the court determines that
– . . . (B) the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against a defendant who is immune
from such relief.” 28 U.S.C. § 1915(e)(2)(B).1
In reviewing a pro se complaint, the court has a duty to show liberality toward pro
se litigants, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and should
exercise “extreme caution . . . in ordering sua sponte dismissal of a pro se complaint
before the adverse party has been served and both parties (but particularly the plaintiff)
have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir.
1983) (internal citations omitted). 	Therefore, a court should not dismiss a complaint if
the plaintiff has stated “enough facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 	“A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556).
1 To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an arguable
basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
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Although a court should construe the factual allegations in the light most favorable
to the plaintiff, “the tenet that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.” 	Id. 	“Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555). “[W]here the well-pleaded facts
do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged - but it has not show[n] - that the pleader is entitled to relief.” Id.
at 679 (quoting FED . R. CIV . P. 8(a)(2)). Rule 8 of the Federal Rules of Civil Procedure
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555).
Thus, 	a 	pleading 	that 	only 	“tenders 	naked 	assertions 	devoid 	of 	further 	factual
enhancement” will not suffice. Id. (internal quotation marks and alterations omitted).
B. Analysis of the Complaint
The Complaint is brought pursuant to 42 U.S.C. § 1983 and concerns the
representation provided by the named individual Defendants to Plaintiff in criminal
proceedings in Onondaga County. See generally Dkt. No. 1, Compl. The nature of the
allegations set forth in the Complaint are that Defendants Chase and Sullivan, who had
been appointed to represent Plaintiff, provided ineffective assistance. Id. at pp. 2-5. The
specific factual assertions need not be recited at length given the pleading deficiencies
noted below. 	Generally stated, however, Plaintiff appears to allege that Defendants
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engaged in a pattern of false statements and falsification of documents during the course
of their representation of Plaintiff. Id. at p. 4. Plaintiff also alleges that Defendants failed
to be in regular contact with him and keep him updated on the status of his criminal case.
Id. at pp. 5-6.
Any claim under section 1983 requires state action. 	“Because the United States
Constitution regulates only the Government, not private parties, a litigant claiming that
his constitutional rights have been violated must first establish that the challenged conduct
constitutes state action.” Flagg v. Yonkers Sav. & Loan Ass’n, FA, 396 F.3d 178, 186 (2d
Cir. 2005) (internal quotation marks omitted). “A plaintiff pressing a claim of violation
of his constitutional rights under § 1983 is thus required to show state action.” Tancredi
v. Metro. Life Ins. Co., 316 F.3d 308, 312 (2d Cir. 2003). “State action requires both the
exercise of some right or privilege created by the State and the involvement of a person
who may fairly be said to be a state actor.” Meadows v. United Servs., Inc., 963 F.3d 240,
243 (2d Cir. 2020) (quoting Flagg v. Yonkers Sav. & Loan Ass’n, FA, 396 F.3d at 186)
(internal quotations and alterations omitted).
Defendants Chase and Sullivan are sued here in their role as appointed counsel for
purposes of Plaintiff’s criminal case. 	Compl. at pp. 2-3. 	It is very clear, however, that
neither a public defender, nor a private attorney appointed to represent an individual in a
criminal case is a state actor as required for a claim under section 1983. Parent v. New
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York, 786 F. Supp. 2d 516, 538 (N.D.N.Y. 2011); Fisk v. Letterman, 401 F. Supp. 2d 362,
378 (S.D.N.Y. 2005) (citing cases).
Additionally, the Cerio Law Offices is not a proper party to a section 1983 claim
because a law firm is not a “person” within the meaning of section 1983. 	Reynolds v.
Darrah, 2011 WL 4582430, at *1 (S.D.N.Y. Sept. 30, 2011).
The lack of state action warrants dismissal of the Complaint. “Ordinarily, a court
should not dismiss a complaint filed by a pro se litigant without granting leave to amend
at least once ‘when a liberal reading of the complaint gives any indication that a valid
claim might be stated.’” 	Bruce v. Tompkins Cnty. Dep’t of Soc. Servs. ex rel. Kephart,
2015 WL 151029, at *4 (N.D.N.Y. Jan. 7, 2015) (quoting Branum v. Clark, 927 F.2d 698,
704-05 (2d Cir. 1991)). 	“However, where the grounds for dismissal offer no basis for
curing the defects in the pleading, dismissal with prejudice is appropriate.” Norwood v.
Albany City Police Dep’t, 2019 WL 7593292, at *2 (N.D.N.Y. Aug. 12, 2019), report
and recommendation adopted, 2019 WL 5415873 (N.D.N.Y. Oct. 23, 2019). Here, since
the law is clear that the attorneys assigned to represent Plaintiff are not state actors, those
claims should be dismissed without leave to amend.
II. CONCLUSION
For the reasons stated herein, it is hereby
RECOMMENDED, that Plaintiff’s Complaint be DISMISSED; and it is
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ORDERED, 	that 	the 	Clerk 	of 	the 	Court 	serve 	a 	copy 	of 	this 	Report-
Recommendation and Order upon the parties to this action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14)2 days within
which to file written objections to the foregoing report. 	Such objections shall be filed
with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. 	Roldan v.
Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs.,
892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); F ED . R. CIV . P. 72 & 6(a).
Dated: December 23, 2025
Albany, New York
2 If you are proceeding pro se and are served with this Order by mail, three additional days will be added to the
fourteen-day period, meaning that you have seventeen days from the date the order was mailed to you to serve and
file objections. F ED. R. CIV. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal
holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday.
FED. R. C IV. P. 6(a)(1)(C).
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